Hunniford v Filz
[2002] TASSC 75
•30 September 2002
[2002] TASSC 75
CITATION: Hunniford v Filz [2002] TASSC 75
PARTIES: HUNNIFORD, Dwayne Michael
v
FILZ, Roger Christopher
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 6/2002
DELIVERED ON: 30 September 2002
DELIVERED AT: Burnie
HEARING DATES: 11 September 2002
JUDGMENT OF: Blow J
CATCHWORDS:
Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Review of sentence - Principles applicable - Whether three months' imprisonment for assault manifestly excessive.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: W J Friend
Respondent: M S Cox
Solicitors:
Applicant: Friend & Jones
Respondent: Director of Public Prosecutions
Judgment Number: [2002] TASSC 75
Number of Paragraphs: 14
Serial No 75/2002
File No LCA 6/2002
DWAYNE MICHAEL HUNNIFORD v ROGER CHRISTOPHER FILZ
REASONS FOR JUDGMENT BLOW J
30 September 2002
The applicant was charged with assault under the Police Offences Act 1935, s35(1), convicted by a magistrate, and sentenced to three months' imprisonment. He moved the Court to review the order of the learned magistrate on the sole ground that the sentence was manifestly excessive in all the circumstances. I heard the motion to review on 11 September 2002 and dismissed it, reserving my reasons. These are my reasons for dismissing it.
The applicant was jointly charged with a man named Grant. Both pleaded not guilty. When the case came on for hearing, Grant failed to appear, but the learned magistrate proceeded with the hearing, ex parte in relation to Grant. He found that both defendants had assaulted a Mr Kohler. The facts as found by the learned magistrate were as follows. Mr Kohler had been involved in a brief fight with a person named Andrew Riley. Punches were thrown by both of them. The fight ended. There was a crowd present. Mr Riley went back into the crowd. Mr Kohler and his companion walked off for a short distance. The applicant came up to Mr Kohler and said, "This is for making my cousin bleed". The applicant then hit Mr Kohler, who fell to the ground. The applicant and Mr Grant then kicked Mr Kohler a number of times to the head and body while he was on the ground. He suffered a fractured nose. One of his teeth was dislodged. He had cuts and bruises, and some broken ribs. He had to have stitches.
This assault occurred in October 2000. The applicant was convicted and sentenced in July 2002. He was 24 years old when sentenced. He had not been to prison before, nor had he ever received a suspended sentence. He had been sentenced to a total of 91 hours' community service in 1997 on a series of charges involving burglary, stealing, destroying property, and injuring property. He had subsequently been before the courts three times on drug charges, once for driving while disqualified, and numerous times for various other offences including injuring property, destroying property, trespass, and traffic matters. He had committed another assault earlier in October 2000, but it is not clear when he was charged with that offence, and it was so minor that he was discharged without conviction in November 2000. He had no convictions for crimes or offences involving violence.
Counsel for the applicant made a number of criticisms of remarks made by the learned magistrate during the plea in mitigation and in his subsequent sentencing comments. His Worship interrupted defence counsel seven times during a very brief plea in mitigation. Whilst there are times when the best course is to allow a plea in mitigation to proceed uninterrupted, there are also times when robust discussion in relation to counsel's submissions is appropriate. If, as in this case, a magistrate is inclined to disagree with counsel's submissions, it is often wise for the magistrate to make his or her tentative views known, in case there is anything more convincing that counsel might want to say. In my view the learned magistrate did not go too far in interrupting the applicant's counsel and letting him know what he was thinking. He was not discourteous, and there is no rule of law that requires defence counsel to be given an easy time.
The applicant's counsel submitted to the learned magistrate that the applicant had not gone seeking out violence. The learned magistrate did not accept that, and said that the applicant did not have any need to come up to the complainant and knock him to the ground, and therefore had sought out violence. In my view the learned magistrate was right to take the view that, as the first fight had finished before the applicant took any action, the applicant had in fact initiated the use of violence in a second fight.
In stating his reasons for finding the charge proven, the learned magistrate made a finding that the applicant had struck the complainant "without any provocation". It was submitted to me that there had in fact been provocation, as evidenced by the comment "This is for making my cousin bleed". It seems clear to me from the transcript of the proceedings that the learned magistrate did not lose sight of the fact that this assault constituted a response by the applicant to the earlier fight between the complainant and Mr Riley. I think it was appropriate for the learned magistrate to characterise the applicant's assault on the complainant as one "without any provocation", in the sense that the complainant had not said or done anything directed towards the applicant. It is important to bear in mind that a magistrate in a busy court of summary jurisdiction should not be expected to choose his or her words with such precision that they will always withstand pedantic scrutiny.
Counsel for the applicant criticised a comment by the learned magistrate that the applicant's record showed "a complete disregard for the laws of the State". However I take the view that that was a fair comment. Significantly, his Worship went on to observe in his next sentence that there was nothing of violence in the applicant's record.
Counsel for the applicant observed that there was no evidence before the learned magistrate, and no comment by him, as to the possibility that the complainant's injuries were caused by the co-offender. I do not think there is anything in that point. The learned magistrate made findings to the effect that the two defendants assaulted the complainant together by kicking him when he was down. Each must be criminally responsible for the injuries inflicted by the other.
Counsel for the applicant observed that the learned magistrate gave no reasons for not suspending part of the sentence; that the learned magistrate made no reference to the applicant's age; and that he had not ordered a pre-sentence report. However these submissions do not relate directly to the critical issue, namely whether a sentence of three months' imprisonment was manifestly excessive having regard to the circumstances of the offence and the offender.
Certainly it would have been within the scope of the learned magistrate's discretion to have imposed a shorter sentence, a partly suspended sentence, a wholly suspended sentence, or even a community service order. See, for example, Wood v Davies A54/1996 (Full Court). Given that the applicant was only 22 years old at the time of the assault, a non-custodial sentence would have been open to the learned magistrate, particularly in the light of the principles expressed by Burbury CJ in the following passage in Lahey v Sanderson [1959] Tas SR 17 at 21:
"It is because the public interest is best served if an offender is induced to turn from criminal ways to an honest living that a court rarely sends a youth to gaol except in the case of crime of considerable gravity (such as a crime involving violence), or in the case of a persistent offender who has shown himself not amenable to disciplinary methods short of gaol. The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility."
I see the specific reference to "a crime involving violence" as significant in the present context.
However an appeal against sentence, like any appeal against an exercise of a discretion, must be determined in accordance with the established principles that were summarised by Dixon, Evatt and McTiernan JJ in the following passage from House v The King (1936) 55 CLR 499 at 504 - 505:
"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
I have already rejected the specific criticisms advanced in relation to the learned magistrate's comments. There remains the question whether a sentence of three months' imprisonment, given the circumstances of the offence and the offender, is unreasonable or plainly unjust, so as to suggest that there has in some way been a failure properly to exercise the sentencing discretion.
In addressing that question, I think it is appropriate to have regard to some comparable cases involving reviews of magistrates' sentences for assaults. In Smart v Filz B46/1994, Cox J (as he then was) dismissed an appeal that challenged a sentence of two months' imprisonment imposed on a 19 year old who had punched a man twice to the head at the man's home. In Edgecock v Davies B53/1995, Wright J dismissed an appeal that challenged a sentence of three months' imprisonment, with two months thereof suspended, plus 41 hours' community service, imposed upon an 18 year old who had pushed a football umpire and punched him on the side of his face. In Haney v Cochrane 44/1997, Slicer J dismissed an appeal that challenged a sentence of three months' imprisonment imposed upon a 23 year old with no relevant prior convictions who had assaulted a man dining in a hotel by punching him to the face, gouging his eye, and banging his head on the floor.
Having regard to those cases and the circumstances that I have referred to, particularly the re-initiation of violence by the applicant and the injuries suffered by the complainant, I do not think it can be said that the sentence of three months' imprisonment was manifestly excessive. I think it was a heavy sentence, but not too heavy a sentence, in all the circumstances.
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